James B. Seplowitz of with Foy & Seplowitz/courtesy photo

New Jersey's technique for detecting drug impairment in drivers is mistrusted by many lawyers,  and some are predicting that the technique will soon generate new types of civil rights suits against police.

Lawyers say the Drug Recognition Expert protocol used on drivers suspected of being drug-impaired lacks objectivity and gives too much discretion to police officers. Conditions could soon be ripe for an increase in civil rights suits related to the DRE protocol, but such litigation carries its own set of challenges, which could scare away even the bravest litigators.

Though the protocol goes back decades and requires a lengthy training and certification process for officers, prosecutions based on DRE have been relatively infrequent in New Jersey. But the little-known system could soon see more widespread application.

Impaired-driving investigations could become more common if voters pass a statewide referendum in November making recreational marijuana use legal.

And an anticipated New Jersey Supreme Court ruling in State v. Olenowski could make it easier for prosecutors to obtain a conviction based on a DRE report. There, the court is expected to decide if the program's methodology enjoys acceptance in the scientific community.

Unlike drunken-driving cases, where charges are brought based on readings from a breath-testing machine, the DRE protocol for suspected drug-impaired driving relies on a police officer's own observations and judgment. Machines that conduct breath tests for measuring marijuana use are in the early stages of development, but that technology would be hampered by the lack of any marijuana legal limit akin to the 0.08 blood-alcohol concentration that is the legal limit for drunken driving.

Officers following the DRE protocol perform 12 steps that include close examination of the subject's eyes for changes in pupil size, as well as checking for track marks that would indicate intravenous drug use, as well as familiar tests used to detect drunken driving, such as the finger-to-nose test and the walk-and-turn test. After performing the examination, the DRE officer issues a conclusion on whether the subject is impaired, and what type of drug caused the impairment.

But some lawyers who are experienced in DRE cases are critical of the training that officers receive, saying it leaves room for testers' personal biases to influence the results.

"I think it's junk science," said David Schwartz, a defense lawyer at Schwartz & Posnock in Eatontown who has represented clients who were charged with impaired driving based on the DRE protocol. "I don't think the criteria for determining if someone is intoxicated due to drugs is reliable, standard and reproducible to the point where it should be admissible," he said. 

Schwartz is concerned that there's no way to verify the figures that officers conducting DRE tests record for their subject's pulse and vital signs, leaving the door open for mistakes or malfeasance.

"There are a lot of components to it, and it's all dependent on one person's observations of another person," Schwartz said. "The officer is in control of the test laboratory, so to speak. It can lead to people feeling uneasy about the fairness and accuracy of the whole process."

Alan Milstein, a Moorestown lawyer who filed a suit in Minnesota alleging misconduct in that state's DRE program, says the very idea of a human taking on the role of a diagnostic device is "such a ridiculous concept." He calls DRE "a fallacious system. I would question whether anybody, even someone specially trained, could determine if someone is on drugs."

James Seplowitz, a criminal defense lawyer at Foy & Seplowitz in Hackensack, said there's "plenty of room for bias" in the DRE procedure. "No one's double-checking the pulse they took. No one's double-checking the blood pressure they got. It's all on the honor system."

And the New Jersey State Bar Association has asked the Supreme Court, in its amicus brief in Olenowski, to find that the DRE technique is not generally accepted in the scientific community.

Elsewhere, DRE has been the subject of civil rights cases, albeit with no major victories.

Four Georgia motorists who claimed a DRE officer violated their Fourth Amendment rights are appealing to the U.S. Court of Appeals for the Eleventh Circuit after a judge in the Northern District of Georgia dismissed their suit. The drivers were separately charged with impaired driving after being subjected to DRE tests administered by the same person, Officer Tracy Carroll of the Cobb County Police Department. Carroll had probable cause to stop each of the drivers, based on such offenses as failing to stay in a single lane. Charges were dropped for each of the four drivers after blood tests confirmed they were not driving under the influence.

The Cobb County case, brought by the American Civil Liberties Union of Georgia, claimed that the plaintiffs should be compensated for being forced to have their blood drawn, being detained in jail overnight, and having the arrests remain on their public records. U.S. District Judge Michael Brown dismissed the case on March 9 after finding Carroll and the department were entitled to qualified immunity. 

In Mesa, Arizona, a driver named Michael Wesley filed a lawsuit against the city in October 2018 after a DRE officer charged him with driving under the influence of drugs. At the time of his arrest, he exhibited slurred speech and erratic behavior, but a blood test confirmed Wesley was not using drugs. Several months later, he was diagnosed with Huntington's disease, a degenerative disorder that could have impacted his behavior in the traffic stop. His suit was settled for what his attorney, J. Scott Halverson, describes as a nominal amount. 

In the Minnesota case, Milstein and co-counsel Nathan Hansen of St. Paul claimed that police officers conducting a DRE training program used young adults participating in Occupy Minneapolis protests in 2012 as guinea pigs, giving them samples of marijuana and other drugs, presumably taken from police evidence, and studying their behavior. Milstein, who represents litigants in suits over clinical trials, asserted that the DRE experiment amounted to an improper clinical trial, that the tests were nonconsensual, and that the subjects were penalized for exercising their First Amendment right to protest. The suit named as defendants Minnesota and the Minnesota State Patrol, among others. The suit claimed the parties were  released into the streets in an incoherent state after the tests were complete. But the case was dismissed in 2016 after a judge found no support to the plaintiffs' claims that their participation was unwilling.

According to Milstein, the judge in the case criticized the distribution of drugs to subjects by police but dismissed the case on finding the plaintiffs could not show they were damaged by the experience.

Likewise, Milstein says filing suits on behalf of those wrongfully charged based on an officer's DRE report would be challenging because of the difficulty of proving damages.

"Damages will be a little tough. The good case would be somebody who's pulled over, is charged with being high on marijuana, spends six months in jail and is ultimately proven not to be high," said Milstein.

Stanley King of King and King in Woodbury, who regularly files civil rights suits against police departments, said the DRE protocol is "fraught with danger" because it places officers and defendants in a "he said, she said situation" with no evidence other than the officer's own assertions. But bringing a civil rights suit over wrongful application of a DRE would be difficult and costly, particularly if the officer had probable cause to make a traffic stop, because damages would be hard to prove, King said.

King said well-funded groups such as the ACLU might be better equipped than attorneys in private practice to bring civil suits over DRE.

"All cases of this magnitude take time and money," King said. "It's going to be very difficult for individual law firms to take on these cases."

Schwartz, the Eatontown defense lawyer, said another impediment to civil litigation over DRE cases is the immunity that will generally be granted to police officers, as the judge ruled in the Cobb County case. An officer that had probable cause to make a traffic stop, but misapplied his DRE training, would be granted qualified immunity in a civil suit, said Schwartz.

Still, the current political and social climate, with some members of the public routinely using smartphones to make videos of routine police stops, creates "a fertile ground for a lot of litigation, if DRE evidence is ruled to be admissible. It depends on the facts and the circumstances of each individual case," Schwartz said.

Brian Mason, a Dover attorney and municipal prosecutor in multiple towns who is president of New Jersey's Municipal Prosecutor Association, doesn't discount the chance of DRE officers' actions leading to civil litigation, but he says, "I don't think DRE in and of itself is going to foster civil rights cases."

Mason said a DRE officer's judgment is not the only factor in an impaired driving prosecution, and courts typically consider other factors such as a video of the defendant's actions.

"I truly believe in our system that there are enough safeguards in place that we do not have to worry about the DRE program," said Mason.

Any police officer who fabricates data for a DRE investigation could lose his job and pension and risks going to jail, Mason noted.

"I would challenge defense attorneys who don't trust police officers to come up with a model they would be happy with. It's easy to challenge, it's tough to create," he said.